1. The district court's findings as to the existence and voluntariness of a consent to
search will not be overturned on appeal unless clearly erroneous.

2. In an appeal by the State from the order of the district court suppressing the
evidence obtained in a search of the defendant, the record is examined and it is
held the district court did not err in finding (1) that the detention of the defendant
was unlawful and (2) that the defendant's consent to search was not voluntary.

Thomas R. Stanton, assistant county attorney, argued the cause, and
Julie McKenna, county
attorney, and Carla J. Stovall, attorney general, were with him on the brief for
appellant.

Mike K. Sheahon, of Sweet & Sheahon, of Salina, argued the cause and
was on the brief for
appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.: The State appeals pursuant to K.S.A. 22-3602(b)(1) from the
district court's order suppressing evidence seized in a warrantless search and dismissing
the case without prejudice.

Defendant Frank Rice, Jr., was one of six visitors in Carey Ford's apartment
when police officers McFadden and Farris went there at approximately 2 a.m. on October
25, 1996, after receiving a dispatch about an anonymous telephone caller complaining of
noise and possible use of marijuana or other narcotics. The officers heard loud music, but
they detected no odor of marijuana. The uniformed officers told Ford the nature of the call
and obtained her permission to enter the apartment to talk to her. Ford then consented to a
search of her apartment. Meanwhile, the visitors sat in the living room, as the officers had
directed them to do. The search took approximately 10 minutes, and the officers found on
a window sill a small plastic bag containing green vegetation that the officers thought was
marijuana.

The officers asked if anyone would admit to owning the marijuana. No one did.
Approximately 10 more minutes passed while the officers took identification and ran a
warrant check on each person. Before the guests were allowed to leave, each one had to
speak to Officer Farris individually in the hallway outside Ford's apartment. He asked Rice
"if he knew anything about the marijuana that was found inside the apartment," or "if he
had any narcotics on his person." Rice answered to both questions that he did not. Then
the officer asked to search Rice. In the meantime, Officer McFadden stayed inside the
apartment with the others.

Officer Farris asked each person for consent to search his or her pockets. Rice
consented. In Rice's right front pants pocket, the officer found a plastic bag that contained
green vegetation. The officer seized the bag and then advised Rice of his Miranda
rights.

A month later, a two-count complaint was filed against Rice for misdemeanor
possession of marijuana and misdemeanor possession of paraphernalia. Rice filed a
motion to suppress evidence seized from him during the warrantless search outside Ford's
apartment. The trial court concluded that the detention, search, and interrogation of Rice
were unlawful and granted defendant's motion. When told that there was no other evidence
against Rice, the trial court dismissed the case without prejudice. A journal entry reiterating
the trial court's rulings from the bench was filed on January 16, 1997. The State filed a
timely notice of appeal.

After hearing the evidence presented by the State at the hearing on defendant's
motion to suppress, the trial court stated:

"Well, this is a Vandiver situation and the evidence is suppressed. There was
an unlawful
detention of the defendant. It was an unlawful search of the defendant. There was no indication
whatsoever
that he was free to go or that he . . . can refuse to consent to that search. . . . The
Vandiver case is clear. It
applies to exactly this type of a situation. The only distinction is that in Vandiver the
police had a warrant to go
search the place. Here they just got consent from the owner who was--there's no testimony that
she was given
any advice that she didn't have to consent to the search or anything else. . . . [I]f there was a loud
party going
on here, the . . . obvious solution to that was go in and send everybody home and break up the
party, not go in
and use it for some pretense to search for drugs . . . ."

When asked to clarify whether he was ruling that Ford's consent to search her apartment
was not voluntary, the trial judge indicated that the issue of her consent was immaterial:
"[W]hat I'm worried about is the unlawful detention of a guest lawfully on the premises."

In State v. Vandiver, 257 Kan. 53, 891 P.2d 350 (1995), the defendant was
one
of six visitors in the apartment of David Moneymaker, a convicted drug offender, when a
police officer entered the apartment to execute a search warrant. The affidavit for the
warrant stated that "two marijuana purchases had occurred at the residence within the
previous four days." 257 Kan. at 54-55. It did not, however, "provide a factual basis for the
issuing magistrate to determine that, other than the occupant, persons within the premises
would be involved in or conducting illegal drug sales." 257 Kan. at 63. The visitors were in
the living room "playing a Nintendo-type game. The apartment reeked of burnt marijuana,
and a baggy containing green vegetation" was in plain view on the floor in the midst of the
visitors. 257 Kan. at 55. The officer "immediately arrested an individual he recognized as
being involved in a drug buy several days earlier." 257 Kan. at 55. Then the officer
conducted a pat-down search of Vandiver and removed a film canister from Vandiver's
pants pocket. The officer testified that "he removed the canister from Vandiver's pocket 'to
inspect it, not knowing what it was,' and because he was suspicious it was either a weapon
or contraband. Vandiver was arrested for possession of marijuana." 257 Kan. at 55. With
regard to the pat-down search, this court stated:

"In circumstances where a police officer executing a search warrant of the premises
observes
unusual conduct by individuals not named in the search warrant which leads the officer
reasonably to
conclude in light of his or her experience that criminal activity may be afoot and that the persons
with whom
the officer is dealing may be armed and presently dangerous, the officer is entitled for the
officer's protection
and the protection of others in the area to conduct a carefully limited search of the outer clothing
of such
persons in an attempt to discover weapons which might be used to assault the officer. See K.S.A.
1994 Supp.
22-2402; Terry v. Ohio, 392 U.S. [1,] 30-31 [, 20 L. Ed. 2d 889, 88 S. Ct. 1868
(1968)].

"In this case, however, there is no substantial competent evidence that exigent
circumstances
existed to authorize the search of Vandiver. There is nothing to indicate that the officer was
concerned with his
safety. After entering the apartment and executing the search warrant, the officer did not
recognize Vandiver,
had no reason to believe that Vandiver had previously committed an offense, and did not have
sufficient facts
to arrest Vandiver for possession of the marijuana in plain view. Under these facts, the Court of
Appeals
correctly determined that under K.S.A. 22-2509(b), the officer executing the search warrant had
no reason to
detain Vandiver to prevent the disposal or concealment of any objects particularly described in
the warrant."
257 Kan. at 63-64.

The State contends that Vandiver should be distinguished on its facts. There
are
essential factual differences--there was a warrant to search Moneymaker's apartment, but
consent to search Ford's; Vandiver was subject to a pat-down, but Rice was searched for
drugs; Vandiver did not consent, but Rice did. These factual differences necessitate some
variants in the analysis, but the initial inquiry for both must involve the status of a guest in a
private residence.

Although complaining of the trial court's reliance on Vandiver, the State
relies on
it, too, and asserts that the case stands for the proposition that officers conducting "an
investigation into the ownership of controlled substances when such substances are found
in the midst of several persons" "must necessarily detain those persons who are possible
suspects in the commission of the crime (of possession) for a reasonable time in order to
conduct the investigation." In other words, the State's position is that the visitors were
detained so that Officers McFadden and Farris could determine who owned the bag of
vegetation on the window sill. The State gives several hypothetical analogies, and all
involve evidence of a crime being in plain view of officers entering the premises. The State
glosses over the question whether principles applicable to treatment of visitors during
execution of a search warrant are equally applicable in a consensual search. K.S.A. 22-2509(b),
cited in Vandiver, provides: "In the execution of a search warrant the person
executing the same may reasonably detain and search any person in the place at the time:
(a) To protect himself from attack, or (b) To prevent the disposal or concealment of any
things particularly described in the warrant." One obvious difference is that when officers
enter a residence with a search warrant, they have probable cause that there is criminal
activity in the residence. Thus, the rationale that the State argues for the officers' detaining
the visitors is based on their seeing the bag of vegetation before telling the visitors to
sit in
the living room. The officers' testimony, however, lends very little support to that sequence.
The following testimony was given by McFadden on direct examination:

"Q. What did you do once you went inside the residence?

"A. We explained the nature of the call and [Ford] gave us consent to search the
apartment for
marijuana or any other illegal drugs.

. . . .

"Q. Did you find anything inside the apartment?

"A. Yes. Very shortly after our entry into the apartment we found a small Baggie of
substance we
believed to be marijuana on the window sill of the front window of the apartment.

"Q. . . . Now, what were the people, the other people who were at the apartment, doing
while you
conducted the search?

"A. We asked them to be seated in the main living area of the apartment.

"Q. Why did you ask them to be seated there?

"A. We--we needed to search the apartment and we wanted them to sit down while we
looked for
any more illegal substances and then we wanted to talk to them about what we had found on the
window sill."

McFadden was not asked, nor did he volunteer, the exact order of events. It might
reasonably be inferred, though, from the last answer above, that the officers did not ask the
visitors to be seated in the living room until after the officers found the bag of vegetation.
The balance of McFadden's testimony and all of Farris' testimony, however, give the
opposite impression. In this regard, McFadden stated that the officers' intention to search
the apartment was formed on the basis of the dispatch before they reached the apartment.
He also testified:

"Q. . . . [W]hen you arrived you saw Mr. Rice and what did you do with Mr. Rice then?

"A. We asked him, as with the other occupants of the apartment, to have a seat in the
living
room."

Officer Farris gave the following testimony:

"Q. What did you do once you were inside the apartment?

"A. We located all the subjects and had them sit in the front room.

"Q. What was the reason for having them sit in the front room?

"A. To just get them all together so we could search the apartment for officers' safety.

"Q. Okay. Did anyone ask to leave at that point?

"A. No, they did not.

"Q. What did you--did you conduct the search then?

"A. Yes. The search was done while the subjects were located in the front room.

"Q. How long did that search take?

"A. The search itself maybe ten minutes.

"Q. Did you find anything during the search?

"A. Yes, we did.

"Q. What did you find?

"A. A small Baggie of green vegetation on the window sill."

On cross-examination, Farris reiterated this sequence:

"Now, you advised Ms. Ford of the reason for you being there and asked her to come into the
house; is that
correct?

"A. That's correct.

"Q. And I believe you testified that you wanted to search the apartment; is that correct?

"A. That's correct.

"Q. And you asked her for consent to search; is that your testimony?

"A. That's correct.

. . . .

"Q. Now, I believe you testified, sir, that when you obtained this consent you located all
of the
subjects and had them sit in the front room; is that your testimony?

"A. That's correct.

"Q. And would this have been done immediately before you started the search of the
residence?

"A. That's correct.

"Q. Now, this, you said, I believe, was for officers' safety.

"A. Yes, sir."

Farris also stated that his intent to search the apartment was formed upon hearing the
dispatch.

As noted, the greater weight of the testimony holds with the bag of vegetation
being found during the search rather than its being spotted by the officers in plain view
when they entered the apartment. The weight of the evidence supports, and it logically
follows, that the officers detained the visitors before becoming aware of any evidence that
the crime of marijuana possession was being committed. There is no claim by the State
that the anonymous tip about possible drug use at the party provided probable, or even
any, reason to believe that a crime was being committed. Additional support for finding that
the detention preceded the discovery of the marijuana may be seen in the absence of any
plain testimony placing the bag of vegetation in plain view of the officers as they entered
the apartment. Under K.S.A. 22-3216(2), "the burden of proving that the search and
seizure were lawful shall be on the prosecution."

The State also argues that the officers were operating under the authorization of
K.S.A. 22-2402(1) in conducting an investigation to discover who owned the marijuana.
The statute is the "Terry stop" statute, which permits an officer to "stop any person
in a
public place whom such officer reasonably suspects is committing [or] has committed" a
crime.

In response to the State's argument, Rice contends that K.S.A. 22-2402(1) does
not apply because he was in a private residence rather than in a public place. As the court
recounted in Vandiver, an issue in State v. Lambert, 238 Kan. 444, 710
P.2d 693 (1985),
was whether Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979),
applied to searches of private property. Ybarra involved the search of a tavern
pursuant to
a warrant. Patrons of the tavern were subjected to "a cursory search" for weapons. After
patting what felt like a cigarette pack with things in it, an officer retrieved from Ybarra's
pants pocket a cigarette pack containing six packets of heroin. The Vandiver court
described the United States Supreme Court's opinion in the following words:

"It noted that the police possessed a warrant based on probable cause to search the tavern in
which Ybarra
happened to be at the time the warrant was executed. It stated that a person's mere propinquity to
others
independently suspected of criminal activity does not, without more, give rise to probable cause
to search that
person. Where the standard is probable cause, a search or seizure of a person must be supported
by
probable cause particularized with respect to that person. It concluded that this requirement
cannot be
undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause
to search or
seize another or to search the premises where the person may happen to be. The Fourth and
Fourteenth
Amendments protect the legitimate expectations of privacy of persons, not places. 444 U.S. at
91. The Court
ruled that '[t]he "narrow scope" of the Terry exception does not permit a frisk for
weapons on less than
reasonable belief or suspicion directed at the person to be frisked, even though that person
happens to be on
premises where an authorized narcotics search is taking place.' 444 U.S. at 94. It concluded that
under the
doctrine of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the
initial frisk of Ybarra was not
supported by a reasonable belief that Ybarra was armed and presently dangerous, which is
required to form
the predicate to a pat-down of a person for weapons. 444 U.S. at 92-93." 257 Kan. at 61.

In Lambert, this court held that "the principles stated in Terry
and Ybarra apply
equally to searches conducted on private property or on property open to the public." 238
Kan. at 448. Thus, in proper circumstances, the police may search a visitor in the course of
executing a warrant for a premises search. Proper circumstances include where there is a
reasonable belief that the person is armed and dangerous, where contraband is in plain
view on the person, and where the visitor consents to being searched. 257 Kan. at 62.

It is abundantly clear from the following testimony of the officers that they were
not concerned that any of the visitors were armed, nor did they observe anything about
Rice's appearance that would indicate that he had violated, was violating, or was going to
violate the law:

"Q. And when you first arrived in the home, did you observe Mr. Rice?

"A. Yes, I did.

"Q. Where did you observe him?

"A. I believe he was towards the back of the living room near the kitchen in the boundary
way
between those two rooms.

"Q. All right. And when you first made observation of Mr. Rice, did it appear that he was
in
violation of the law?

"A. No, sir.

"Q. Did it appear that he had just done something immediately before your arrival that--in
violation
of the law?

"A. No.

"Q. Did it appear that he was going to violate the law?

"A. No.

"Q. All right. And at any time did you have reasonable articulable suspicion that Mr. Rice
had
violated the law?

"A. Not until a search of his person was conducted.

"Q. And was there an odor of marijuana about the building?

"A. No, sir.

"Q. Okay. Now, so when you arrived you saw Mr. Rice and what did you do with Mr.
Rice then?

"A. We asked him, as with the other occupants of the apartment, to have a seat in the
living room.

"Q. You told him to have a seat?

"A. We asked them to have a seat.

"Q. You asked them. In what manner? What did you say? How did you say it?

"A. I probably said something to the effect would you people sit down in the living room.

"Q. Okay. And at that time did--let's strike that. I've already been over that. And Mr. Rice
complied
with your request, did he not?

"A. Yes, he did.

"Q. At any time did Mr. Rice do anything that would cause you to fear for your safety?

"A. No, sir.

"Q. So you did not conduct any type of pat-down search of Mr. Rice to insure that he
didn't have
any gun or weapon for your own safety; is that right?

"A. No, sir. We felt that having them all take a seat in the living room where we could
observe
them was sufficient.

"Q. Okay. So at that time then you did not have any concern for your own safety and you
did not
conduct any further type of Terry search of Mr. Rice, correct?

"A. We're always concerned for our safety.

"Q. Well, I understand, but at that particular junction?

"A. No, sir.

"Q. Okay. And he sat there pursuant to your request and he didn't get up and he didn't
leave,
correct?

"A. No, sir, he did not.

"Q. And did you have any outside information that Mr. Rice might have been--any tip
from any
informant that Mr. Rice was in any violation of the law?

"A. No, sir we didn't.

. . . .

"Q. Now, at any time prior to this time, did you seek and obtain a search warrant for the
search of
that residence?

"A. No, I did not.

"Q. So to clarify you did not have a search warrant, correct?

"A. Correct.

"Q. Now, I believe you testified, sir, that when you obtained this consent you located all
of the
subjects and had them sit in the front room; is that your testimony?

"A. That's correct.

"Q. And would this have been done immediately before you started the search of the
residence?

"A. That's correct.

. . . .

"Q. At any time when these individuals were asked to sit in the front room, did you pat
down any
of [them] for search of weapons for your own safety?

"A. No, I did not.

"Q. Now, in any event, you asked them to sit down. Did he in fact comply?

"A. Yes, he did.

"Q. Now, at any time did Mr. Rice indicate to you that he wanted to go?

"A. No, he did not.

"Q. At any time did you or Officer McFadden indicate to Mr. Rice or any of the other
individuals
that they were free to go?

"A. We were detaining them until we got the warrants checked.

"Q. Until what?

"A. We were detaining them until we got the warrants checked.

"Q. To answer my question then you and Officer McFadden would not have explained to
them
that they were free to go?

"A. They were not free to go at that time, yes.

"[Now], when you first entered that apartment, did you observe Mr. Rice committing any
crime?

"A. No, I did not.

"Q. Did you have any reasonable suspicion that he had committed a crime or was about to
commit a crime?

"A. I didn't know. That's why we had him detained in the living room."

Rice advocates affirming the trial court's reasoning as well as its result. He
argues that he was improperly detained and that his consent to the search of his person
was "not an act of free will" because it was "so closely intertwined with the primary
illegality."

The State argues that defendant's consent to Officer Farris' search of his person
was not rendered involuntary by his being detained. Furthermore, the State asserts, "if
there was an unreasonable, unlawful detention of Appellee by Officers McFadden and
Farris, the subsequent consent given by Appellee to the search of his person was
voluntary and removed any taint present because of the detention." For this proposition,
the State cites State v. Crowder, 20 Kan. App. 2d 117, Syl. 5, 887 P.2d 698 (1994).

In Crowder, the Court of Appeals stated that "[t]he test for whether a seizure
has
occurred turns on whether a reasonable person under the totality of the circumstances
would believe, based on the officer's conduct, that he was free to go. Florida v.
Bostick,
501 U.S. 429, 115 L. Ed. 2d 389, 400, 111 S. Ct. 2382 (1991)." 20 Kan. App. 2d at 121. In
the present case, Officer McFadden testified that Rice would not have been permitted to
leave the living room of Ford's apartment if he had requested to do so. Thus, there is no
question that Rice's being directed to sit in the living room constituted a seizure. Under
Crowder's holding, however, even if he was unreasonably seized, his consent to the
search could operate to break the chain of events between the illegal detention and the
search if his consent was voluntarily given under the totality of the circumstances. 20 Kan.
App. 2d at 122. In other words, a search authorized by voluntary consent could be
reasonable under the Fourth Amendment even though it followed an unreasonable seizure.

Voluntariness of consent to search is a question of fact. State v. Johnson, 253
Kan. 356, 364, 856 P.2d 134 (1993). "The trial court's findings with regard to the existence
and voluntariness of a consent to search will not be overturned on appeal unless clearly
erroneous." 253 Kan. 356, Syl. 1. Factors to be considered in determining whether the
consent to search is an act of free will that was independent of the detention, the primary
illegality, include "the proximity in time of the Fourth Amendment violation and the consent,
intervening circumstances, and particularly the 'purpose and flagrancy' of the officers'
misconduct. U.S. v. Mendoza-Salgado, 964 F.2d 993, 1011 (10th Cir. 1992)."
Crowder, 20
Kan. App. 2d at 122.

In the present case, Officer McFadden's estimate of the time the visitors were
detained was "roughly 15 to 20 minutes." During that time the officers spent about 10
minutes searching the apartment and then asked the visitors for identification in order to
check for outstanding warrants. Circumstances intervening between the initial detention of
the visitors and Rice's consent to search seem to intensify the coercive atmosphere rather
than dissipate it. The officers searched the apartment and found apparent contraband, they
took identification from the visitors in order to run checks on them, and, finally, the officers
separated so that each visitor could be isolated from the group when questioned and
asked to consent to a search of his or her person. A federal appeals court uses the phrase
"exploitation of the primary illegality" to describe a circumstance when police use fruits of
the primary illegality to coerce a defendant into granting consent to search. United States
v. Carson, 793 F.2d 1141, 1148 (10th Cir.), cert. denied 479 U.S. 914 (1986).
A police
request for consent to search does not itself constitute exploitation of the primary illegality,
but the consent may be combined with other, more coercive, police conduct so that the
resulting consent is not voluntary. In the present case, it appears that the contraband
discovered while the visitors were detained probably became an important article in the
intensifying pressure applied by the officers to the visitors. See 793 F.2d 1141. The
officers' conduct, although perhaps misguided rather than brutal or racially motivated or
otherwise morally reprehensible, exceeds the bounds of constitutionality in a purposeful
and obvious way. The prosecutor's seemingly sincere argument that the police were simply
doing their jobs by conducting an investigation into suspected criminal activity begs the
question. The duty to investigate an anonymous telephone call does not justify the unlawful
detention of an innocent nonresident visitor in a private residence. In U.S. v.
Shareef, 100
F.3d 1491 (10th Cir. 1996), the trial court had suppressed evidence obtained as a result of
the defendant's detention following a traffic stop. The court found the stop analogous to an
investigative detention and stated:

"We therefore analyze such stops under the principles set forth in Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968). In evaluating the reasonableness of an investigative detention, we make a
dual inquiry,
considering first 'whether the officer's action was justified at its inception,' and second 'whether it
was
reasonably related in scope to the circumstances which justified the interference in the first
place.' Terry, 392
U.S. at 20, 88 S. Ct. at 1879. 'The government has the burden of demonstrating that the seizure it
seeks to
justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to
satisfy the
conditions of an investigative seizure.' United States v. Perdue, 8 F.3d 1455, 1462
(10th Cir. 1993). If the
detention is not so limited, the stop may only be justified by probable cause or consent.
Id." 100 F.3d at 1500-01.

Here, there was no criminal activity to investigate prior to finding the marijuana
on the window sill. The officers admittedly did not have a reasonable suspicion of any
criminal activity on the part of Rice when they first entered the apartment or upon discovery
of the marijuana on the window sill. The detention of Rice was unlawful from the moment
he was ordered to sit down in the front room up to and including the search of his person.
There were no intervening circumstances which separated Rice's "consent" from the
unlawful detention. The officers had no reasonable basis to detain Rice. Further, the
prosecution's alluding to the trial court's "rampage" and "personal dislike toward the
investigation and prosecution of drug crimes" and suggesting that the trial court's ruling
was based upon "personal bias" rather than on the evidence reflects poorly on the State
and tends to discredit its argument.

The district court's finding that Rice's detention was unlawful is supported by
substantial competent evidence. As to Rice's consent to search, the district court's finding
that it was not voluntary is not clearly erroneous.